Bargaining in Philadelphia: Constitutional Games, Rational Law-Making, and Originalism

This article explores a possible bargaining-based account of the U.S. Constitution and its impact on intention-based originalism. I argue that the bargaining approach leads to a characterization of original intent in terms of rules in equilibria. The adoption of the U.S. (Federal) Constitution is the institutional result of coordination among a plurality of State agents with opposed interests and political views. Game theory might offer a rational reconstruction of the constitution-making process: under the game-theoretic model, the Constitution is the product of a series of intentional actions performed by individual agents behaving mainly as selfish individuals or group utility maximizers. These agents operate within a specific institutional framework. Game theory saves the intuition that law-making at the constitutional method can be effectively understood as a rational process. What is more, it might justify an originalist method for constitutional interpretation: we shall interpret constitutional provisions in light of their underlying equilibria.